147 Wis. 586 | Wis. | 1912
Lead Opinion
The- appellant urges tbe reversal of tbe judgment in plaintiff’s favor upon tbe ground that there is no evidence showing any insufficiency and want of repair of tbe highway, and urges that it appears as matter of law that tbe injury to tbe plaintiff’s automobile was caused by bis contributory negligence.
Tbe evidence is undisputed that no guard, barrier, or fence bad been erected at tbe end of tbe culvert or near tbe ditch connected therewith at its west end. Tbe location of tbe culvert, tbe ditch, and tbe traveled part of tbe highway are as set forth in tbe foregoing statement. Tbe claim is made by tbe appellant that tbe evidence incontrovertibly and clearly shows that tbe city at tbe place in question maintained a reasonably safe road for public use. Tbe evidence is that there was a ditch two feet in width, sixteen inches deep, and from six to eight feet long connected with tbe culvert, which was located in Eidge road on tbe Ninth street crossing, and that tbe travel to and from tbe south over these highways at tbe crossing was about eighteen inches from tbe west end of tbe culvert. It also appears that tbe traveled track on Ninth street was close to tbe margin of tbe ditch,.and that travel over tbe .area at. tbe intersection of tbe two highways bad spread out and covered nearly tbe whole of tbe forty-foot culvert. Tbe ground at this place before tbe grading of tbe highway was almost level, having a gradual • slope southeastward. It is manifest from- tbe facts in evidence that there was no natural object to apprise travelers of tbe existence of tbe ditch and •culvert, aside from tbe open ditch itself, which was in tbe surface of tbe ground, practically level with tbe area formed by tbe intersection of these highways. There is evidence tending to show that tbe culvert was covered with earth to its ■end on tbe west, and that it and tbe ditch connected with it were not readily observable at a distance on account of tbe
It is argued that this does not constitute an insufficiency in the road, because the defendant had provided for public use at this point an amply wide and level traveled track of abont thirty-seven feet in width, and hence that this ditch could not render the place dangerous to travelers properly using it in the exercise of reasonable care. This overlooks an essential factor of what is a reasonably safe highway, namely, whatever may be the width and suitableness of the space actually occupied as a traveled track of a highway “there may exist dangerous defects and obstructions outside of the traveled path, depending on circumstances. Much depends on the nature and situation of the alleged obstruction [defect] and whether it is plainly to be seen or not,” and whether it is so connected with the traveled track as to affect the safety of the public using it in the usual and ordinary way while exercising ordinary care. We are persuaded that the jury were fully justified in their conclusion that this unguarded pit or ditch was such a danger connected with the traveled track as to make it an insufficiency in the highway crossing and rendered it not reasonably safe for use by the traveling public within the principle of the following cases: Wheeler v. Westport, 30 Wis. 392; Seymer v. Lake, 66 Wis. 651, 29 N. W. 554; Slivitski v. Wien, 93 Wis. 460, 67 N. W. 730; Prahl v. Waupaca, 109 Wis. 299, 85 N. W. 350; Jenewein v. Irving,
It is farther contended that, if the highway is regarded as insufficient, the plaintiff is not entitled to recover because it appears that he was guilty of contributory negligence which proximately contributed to cause the injury to his automobile. The court submitted the evidence upon this inquiry to the jury under proper instructions and the jury found him free from contributory negligence. The trial court upon review of the case again concluded after verdict that the question of plaintiffs contributory negligence under the evidence was properly for the jury. Counsel’s contention on this issue seems to omit due consideration of the rule that the defense of contributory negligence must be affirmatively established. Seymer v. Lake, 66 Wis. 651, 29 N. W. 554; Cantwell v. Appleton, 71 Wis. 463, 37 N. W. 813; Rhyner v. Menasha, 97 Wis. 523, 73 N. W. 41. “The correct inquiry in such case ... is not whether there is evidence to support the finding of the jury, because that may be supported by lack of evidence in whole or in part, but whether there is uncontroverted evidence” (Clary v. C., M. & St. P. R. Co. 141 Wis. 411, 123 N. W. 649) which shows plaintiff guilty of a want of ordinary care which proximately contributed to the injury. The facts mainly relied on to show plaintiff’s want of ordinary care that contributed to this injury are that he approached this highway crossing by running the two wheels of his car outside of the traveled track and that he designed to do likewise after passing this crossing, that he took a course over the crossing which, had he proceeded straight forward, would have run the left front wheel into the ditch as well as the right wheel, and that he omitted to keep a lookout for the ditch or pit until he had approached it so closely that he could not turn his car so as to pass over the culvert in safety. It must be borne in mind that plaintiff was within the traveled portion of the highway at the time he first saw this pit, that
There is no error in tbe record.
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). In my judgment, whether the highway was reasonably safe under the circumstances, is not material, since the evidence of respondent, it seems, clearly convicts him of contributory negligence. On this branch, as it appears to me, the court’s opinion unwarrantably suggests that counsel for respondent “omit due consideration of the rule that the defense of contributory negligence must be affirmatively established.” I do not perceive any such infirmity in counsel’s argument. On the contrary, it seems to recognize the suggested rule and also this companion rule which the court appears to have overlooked: When the evidence on the part of the plaintiff clearly discloses contributory negligence, he cannot recover. Such negligence, thus disclosed, is just as efficient as when established in the most conclusive manner by evidence on the part of the defendant. That rule is very old and has never been considerately departed from, though, I must say, its dignity, now and then, as in this case, may not have been fully appreciated. Achtenhagen v. Watertown, 18 Wis. 331; Hoyt v. Hudson, 41 Wis. 105; Prideaux v. Mineral Point, 43 Wis. 513, 524; Randall v. Northwestern T. Co. 54 Wis. 140, 11 N. W. 419; Kelly v. C. & N. W. R. Co. 60 Wis. 480, 19 N. W. 521; Owen v. Portage T. Co. 126 Wis. 412, 105 N. W. 924; Langhoff v. C., M. & St. P. R. Co. 19 Wis. 489.
It is a mistake to suppose the doctrine, that a plaintiff to make out a case of actionable negligence, must show defendant to have been guilty of a want of ordinary care proximately producing the injury, and also that he, himself, was free from such contributory fault, declared in Chamberlain v. M. & M. R. Co. 7 Wis. 425; Dressier v. Davis, 7 Wis. 527, and similar early cases, has been overruled or modified, except as stated in Milwaukee & C. R. Co. v. Hunter, 11 Wis. 160. There the court, speaking by Mr. Justice Paute, materially limited them, but affirmed that for plaintiff to possess a prima
Tbe logic of tbe foregoing is easily seen, as follows: Contributory negligence is matter of defense, and, therefore, must, as a rule, be established by the defendant, not by plaintiff as part of his case, because of the fact tbat men, in general, are supposed to act with ordinary care for their personal safety. Plaintiff may rely on tbat presumption in bis favor if be can otherwise make a prima facie case without destroying it. So, while we say, the burden of proof in respect to contributory negligence is on the defendant, to be accurate, it. is just as true, as early decided, that to make a case in plaintiff’s favor, the latter must show, as an essential, freedom from' contributory negligence. However, be can rest upon the pre- • sumption in bis favor till it shall bave been overcome by bis-own disclosures or evidence on defendant’s part, having regard to the rule that it must be overcome with the same conclusiveness that any fact must be established by evidence in tbe face of opposing evidence or presumption, and tbe labor of lifting the burden of proof in respect to the matter. Tbat has been many times carefully elucidated. Over and over again it bas been said:
“Plaintiff is not bound in the first instance to sbow tbat be-was not guilty of negligence which contributed to the injury,*595 but is bound only to establish a prima fapie case;” “but, if tbe plaintiff’s own evidence raises an inference of negligence against himself, he must in order to establish a prima facie case show that he was not guilty of negligence” (want of ordinary care) “contributing to produce his injury.” Murphy v. Herold Co. 137 Wis. 609, 614, 119 N. W. 294.
As said in Lind v. Uniform S. & P. Co. 140 Wis. 183, 120 N. W. 839:
While contributory negligence is an affirmative defense and the burden of proof is on defendant to establish it by a preponderance of evidence, “it is immaterial whether the evidence establishing such negligence is given by the witnesses for the plaintiff or the defendant.”
.So it will be seen that, unfortunately, in endeavoring to state a sound basis for its decision the court gave such prominence to a well known rule, — without, seemingly, appreciating for the time its limitations and exceptions, using the language without qualification, “the defense of contributory negligence must be affirmatively established,”- — that one not well grounded in the real logic of the law of negligence might fairly reason, applying the language to the case in hand, that the defense of contributory negligence must, necessarily, to be efficient, be established by evidence produbed by the defendant; and, if familiar with the subject as treated in our books, come to the conclusion that the court is disposed, at this late day, to run counter thereto in the instant case. It seems impossible to prevent confusion of that sort now and then creeping into our jurisprudence, to become a troublesome factor in future litigation, in addition to the mischief of it in the given instance. That would seem to be a criticism upon the trite saying that the law is a science. But not so. The seeming difficulty is not with the law but is in the infirmity of human instrumentalities. With all due care which can be exercised,, courts will make mistakes, and must necessarily, if they would come as near as practicable to the standard of ideal justice, be.ever ready to correct them.
The following are the precise circumstances as I gather them from the evidence. I will endeavor to state them in the most favorable light for respondent which they will reasonably bear. I find myself compelled to make this statement in order to present clearly my view of the facts, since I cannot escape the conclusion, as will be seen, that the court has misconceived them to some extent.
The accident happened in the daytime when plaintiff had a good opportunity to observe the course of the roadway at the crossing as he approached the culvert. He was a physician, on the way to make a professional call. He was going at about eleven miles per hour and keeping a lookout ahead. It had been raining, rendering the roadway slippery, which caused him to run partly outside the traveled way on the ■ grass, so as to secure a good footing for his automobile wheels. Ridge road runs north and south. It was turnpiked in the usual way. The surface of the pike was of generous width and sloped gradually on either side, to a drain about one and one-half feet below the level of the traveled track. It intersected at right angles with Ninth street, angling east in crossing from the north some ten feet. The street was turnpiked the same as Ridge road. The surrounding country was of
The plat on page 600 will enable one to fully understand the foregoing.
Thus, it will be seen, respondent, wholly for his own convenience, was traveling, when the accident occurred, outside
He was nearly one third the ordinary width of a highway aside from his proper course. He was going at the rate of nearly fifteen feet per second, aiming for the drain on the
I read witb surprise tbe language of tbe opinion: “Plaintiff was within tbe traveled portion of tbe highway at tbe time be saw tbe pit,” as if be were in such portion in tbe course from north to south on Ridge road. True, be was in a traveled portion but merely because be was crossing, almost at right angles, the- curved track connecting West Ninth street witb South Ridge road, — not in tbe course of travel from north to south on Ridge road or any other course of travel.
If one should, knowingly, plunge witb an automobile, going at tbe rate of fifteen feet per second, directly across any pike aiming for tbe ditch at tbe side of it, and run into an obstruction far out of tbe course of travel, as well might be be said to be free from contributory negligence because be could not see tbe obstruction while bis machine was yet in tbe road but crosswise of it, as is said of tbe respondent in tbe language quoted.
Again tbe decision is grounded on the fact, so stated, that respondent was “running at a lawful rate of speed,” as if there were any regulations for speeding outside of the regular course of travel and along tbe sides and drains of turnpikes. True, “be was giving attention to and observing tbe road at tbe crossing.” He testified to that. He observed tbe course of travel angled to tbe east. But bis observation was not taken for tbe purpose of keeping within tbe road, but keeping outside of it, as be frankly repeatedly testified.
My somewhat lengthy review of this case for tbe purpose of
Now it would seem that the foregoing without reference to authority indicates, clearly, that respondent was acting almost recklessly at the time he came up to the ditch. Moreover, as I understand it, this court has repeatedly decided that such conduct as purposely traveling outside the way provided therefor, as here, is contributory negligence as a matter of law. Counsel for appellant in appealing to this court relied, and it seems had a right to rely, on those cases. They, or most of them, were cited to our attention. It is unfortunate that they were not referred to by the court and some attempt made to give some reason why they do not apply to the facts. I must assume the omission to give attention thereto is explained by the frequent statement in such opinion that respondent was attempting to make the crossing in the ordinary course of travel when he came upon the peril which he then had no time to escape from. If that were so, such cases, of course, do not apply. But how can we escape the conclusion that he was not only outside the course of travel, speaking as we must of the travel from north to south on Ridge road, but was trying to avoid such course, — go wholly outside thereof and the course
The extensive list of authorities-does not contain any material addition to those cited by counsel. He industriously collated substantially all adjudications of this court on the subject. That siich authorities are to -the point, and decisively so, can readily be seen, in my judgment, when one with full appreciation of the facts reads the rule stated time and again therein in this language, or substantially this:
When a person “without necessity or for his own pleasure or convenience voluntarily diverts from the traveled track which is in good condition and, in so doing, meets with an accident from some cause outside of the traveled track, the town will not be responsible for any damage or injury which he may sustain.”
There is no question here but that the traveled track north and south was in good condition. It was much wider than commonly. One could swerve from the main way to the left or to the right at the culvert some eighteen feet without any danger from the ditch or anything else. If there were any defect whatever, it was in the construction of the way for the turn from West Ninth street into South Ridge road and at a point, as we have seen, far removed from the course of travel or prepared way from North to South Ridge road. In Hammacher v. New Berlin, supra, there was a pike, culvert, and
“If plaintiff had been using the traveled track, and stepped off from the end of the culvert, probably there would have been a question for the jury whether the lack of a rail or guard constituted negligence, and also whether plaintiff was exercising due care in his traveling. But that was not this case. . . . He was knowingly using a part of the highway which had not been prepared for public travel. In so doing he walked into the ditch. Ho railing or guard designed for the purpose of protecting persons traveling on the prepared way from the danger of falling off the end of the culvert would have prevented plaintiff from falling into the ditch.”
So here if plaintiff had been using the traveled way over the culvert from North Ridge road to South Ridge road or from West Ninth street to South Ridge road, or vice versa,, and by some excusable circumstance he had swerved to the right too far, there might have been a jury question presented. But he was not. He was, at best, in the road from West Ninth street to South Ridge road, but crosswise thereof when he found himself in peril. It is too strained altogether, I should say, to argue that he was in the traveled way, within the meaning of the authorities, merely because he was in the traveled way of a road out of his course and crosswise of such way, making for a place outside of any traveled way, or way prepared for travel.
Concurrence Opinion
We concur in the foregoing opinion.
A motion for a rehearing was denied January 9, 1912.
